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Bill C-93 (Expedited Record Suspensions for Simple Cannabis Possession) - Second Reading

Honourable senators, I rise today to speak to Bill C-93, An Act to provide no-cost, expedited record suspensions for simple possession of cannabis. With this important piece of legislation, the government is proposing to provide an expedited pardon mechanism for those with simple cannabis possession records with the usual application fee being waived.

The objective of Bill C-93 is to allow these individuals the option to shed the burden of stigma, as well as to eliminate barriers to meaningful employment, education, housing, the ability to volunteer in their communities and to have a greater ability to travel. All of these things are consistent with one of the key purposes of Bill C-45, the cannabis legalization bill that we dealt with last year.

Similar to our approach with the sponsorship of Bill C-45, my office will be proactively sending briefing material and issue notes to all senators as we move through this process. Indeed, you have already received an email package this evening in both official languages.

I would also like to take this opportunity to extend an invitation to all senators and their staff to attend an information session on the bill this Wednesday, June 12, at 11:30 a.m. An invitation will be circulated with details.

I also want to be proactive today in describing key issues emerging in the House of Commons debates in order to set the stage for our discussion of this important legislation.

However, I begin my remarks today by reflecting on just how much difference a year can make. One year ago this past Friday, June 7, senators voted on third reading of Bill C-45, the Cannabis Act. It was somewhat of a historic moment for the Senate and for Canadians. Leaders agreed on scheduled and thematic debates, extensive and thorough committee study and, importantly, set a date well in advance for a third reading vote. After months of fulsome study in the Senate, debate and soul searching, Canada became the second country in the world to legalize and strictly regulate cannabis.

Last week, I had the privilege of attending the National Finance Committee, chaired by Senator Mockler, to participate in the pre-study of the budget bill. You’ve probably heard enough about that, I suspect. However, senators and witnesses were discussing the taxation of cannabis. It was an engaging, thoughtful and policy-based discussion, which was very refreshing. We could have been discussing any commodity and any market. The tone of the meeting speaks to the strides we’ve made in eliminating stigma in just a matter of months and in continuing to realize the public health and social objectives behind cannabis reform.

Today, colleagues, we are making another stride, one that sets out to improve the lives of those who have been convicted of simple possession of cannabis. The government is proposing expedited record suspensions, popularly known as pardons, for previous offences that are now legal under the Criminal Code. This proposed pardon process will be a simplified and expedited version of the existing pardons and/or records suspension process that has been in operation for many years. For this reason, the bill is short. It weighs in at four and a half pages covering both official languages but its impact would be profound. My remarks are not proportional in length to the length of the bill.

Bill C-93 would expedite and improve Canada’s well-known and widely used pardon process. In so doing, it would provide quick relief to those affected by the stigma of minor possession charges for a drug now legal and regulated.

Both the $631 application fee and the five to ten-year waiting period now required to make an application would be waived, and where the basic requirements of an application are met, a pardon would be granted without any subjective criteria being applied by the Parole Board staff. This is currently the case. There are subjective criteria applied.

First some background, the government launched two separate consultations on records suspensions beginning in 2016 following a commitment to review the pardon process. One was facilitated by the Parole Board of Canada and the other was done by the Department of Public Safety. After receiving over 3,000 submissions from Canadians and after engaging with social justice advocacy groups, it became clear that most people were generally supportive of expedited pardons for cannabis possession convictions.

Under Bill C-93, individuals who were previously convicted for the simple possession of cannabis will now have the option to apply for a pardon as long as they have completed their sentencing. Due to an amendment at the Public Safety Committee in the House of Commons, it is important to note that applicants may still apply even if they have outstanding fines stemming from their previous conviction. This flexibility will allow disadvantaged applicants the ability to start the process, regardless if they have outstanding fees in relation to their sentence. Applicants will not be subject to wait times, the application fee and other decision-making criteria currently applying under the Criminal Records Act for those seeking pardons.

Let’s look a bit more closely, honourable senators, at what a pardon means in practice, why this mechanism is being recommended and some of the matters we will be considering as we look at the bill.

Bill C-93 references both “pardon” and “record suspension.” In 2012, the former Conservative government enacted legislation to change the term “pardon” to “record suspension” as well as raising the application fee and extending wait times required prior to an application. Further changes were made to ensure that those convicted of a sex assault offence involving a minor and those with more than three offences prosecuted by indictment, each with a prison sentence of two years or more, would no longer be eligible to apply for a record suspension.

According to the Parole Board of Canada,

 . . . a record suspension keeps a judicial record of conviction separate and apart from other criminal records ... it removes all information about the conviction from the Canadian Police Information Centre (CPIC) database.

Once a record suspension has been granted, federal agencies are not able to release information about the conviction without the approval of the Minister of Public Safety. A record suspension does not erase the conviction, but keeps it separate and apart from other criminal records.

The Parole Board processes record suspensions according to the nature of the offence. Suspensions for summary convictions are currently processed by the board within six months of application acceptance, meaning that the application has been accepted as eligible by the Parole Board, while indictable offences are processed within 12 months.

The expedited process proposed in Bill C-93, when that process is up and running, would likely see applications processed in weeks as opposed to months.

An application for a pardon in Canada now costs $631 and is subject to the five-to-ten-year waiting period following the completion of a sentence. A sentence means the punishment assigned to a defendant found guilty by a court or fixed by law for a particular offence. It could mean jail time, probation or community service.

Under Bill C-93, the five-to-ten-year waiting period and the application fee would be eliminated in cases involving simple possession of cannabis and the processing of applications would be accelerated. However, I want to note that since the expedited pardon process would be self-driven, applicants may be subject to other fees in obtaining the legal documents required for their application. An example of this may be payment for fingerprinting at local police stations. Officials have estimated that the maximum cost of obtaining all of the required documents to be approximately $220. This would be the highest-possible cost because it’s based on adding the highest costs across the country for obtaining fingerprints, court records and police records.

To be clear, while the $631 fee for a pardon application will be waived, there will still be some costs associated with the application.

Finally, through this expedited process, when the records associated with the conviction has been filed, a record suspension would be ordered by a Parole Board staff member as long as the applicant has completed a sentence and does not have any other offence on their record. There would be no subjectivity involved in the decision and the pardon would be processed.

Honourable senators, it would be, for all intents and purposes, automatic.

I would like now to speak about the eligibility criteria. Those who are eligible for an expedited records suspension under Bill C-93 may only apply if they have been charged with simple possession of cannabis. Simple possession generally refers to a criminal charge for possession of a controlled substance, in this case cannabis, for personal use with no intent to traffic. Applicants will be ineligible to apply for the expedited process if they have additional convictions on their record, but they may still apply for a record’s suspension under the current process in place and be subject to fees. Wait times for any cannabis possession as part of those records will not apply.

This is an important point of clarity, it certainly was a learning point for me. This is because a record suspension applies to an applicant’s entire criminal record. It’s not possible to sever one part of that record. Even if it was, in any event, it would not be helpful to the applicant since the remaining convictions would still appear on any criminal reference check and would potentially continue to be a factor in employment opportunities.

As we learned last year during our study of Bill C-45, Indigenous and other racialized Canadians, together with those living in vulnerable neighbourhoods are disproportionately affected by convictions for cannabis possession. The expedited process will be important for members of these communities. It goes without saying. The Parole Board will be reaching out to these communities with information and is streamlining its processes to make the application process faster and easier. The expedited process will also be available to those who are not a Canadian citizen or a resident of Canada.

Some concerns were raised at the Public Safety Committee and in the debate in the House of Commons regarding access to the expedited process. Responsive to some of these concerns were several amendments to the bill which were accepted. These amendments further streamline the record suspension process, making it more accessible to marginalized populations.

In essence, some amendments would ensure that any outstanding fines and/or victim surcharges associated with convictions for simple possession of cannabis will not create barriers to achieving record suspensions and also ensure that wait periods for simple possession of cannabis convictions will not impact their application.

Another important amendment ensures that record suspensions associated only with convictions for simple possession of cannabis cannot be revoked if the board determines a person is determined to no longer be of good conduct.

My office has outlined these amendments in the briefing package you have received should you like to review them more closely. I’m confident that these amendments have strengthened this legislation. I look forward to continuing the study at committee to ensure that the proposed process will serve its intended purpose.

I would now like to take a couple of minutes to talk about pardons versus record expungements. Some advocates have proposed that instead of expedited pardons, simple cannabis possession offences should be expunged. Others argue that the expedited pardon scheme in Bill C-93 should not require an application and should instead be entirely driven by the Parole Board.

The House of Commons committee heard from many social justice advocates on this subject, including lawyer Annamaria Enenajor, who provided helpful testimony on this very issue during our study of Bill C-45 last year. I have contemplated on this a lot, and I initially shared the concerns of those who are worried that we may be disadvantaging some vulnerable Canadians by proposing a self-driven application process.

However, the more I considered the issue, the more I understand and support the policy decision adopted by government.

First, expungement was not designed for this purpose. It is a new concept created by the government in 2018 to deal specifically with convictions for consensual same-sex activities, which were found to be a violation of the Charter of Rights. Expungements can be extended to other offences, constituting a historical injustice, which will often overlap with unconstitutionality. It should be noted, though, that expungements in the case of historical same-sex convictions also require an application. It is not automatic.

In comparison, cannabis possession convictions are not unconstitutional. However, it is clear that the law has not been uniformly applied and has disadvantaged some populations. In order to recognize that — and also that cannabis is now legal under the Cannabis Act — the government is providing the expedited pardon process as well as waiving the associated application fee.

Second, the bill proposes that in the case of cannabis offences, expedited pardon applications would be self-driven by the applicant and will be completed in a much shorter time frame than Parole Board driven pardons or expungements. Why is this the case? For example, many cannabis charges and convictions are for possession of a controlled substance, a generic charge which could refer to heroin, cocaine, methamphetamines or other hard drugs with which cannabis was previously associated.

Federal records will, in many cases, not contain sufficient information to efficiently identify simple cannabis charges. The retrieval of local court and police records is a necessary step in the pardon process and is something that could be initiated immediately by applicants.

While expungements or pardons administered by the Parole Board of Canada might sound attractive, in practice they would likely take many years to complete. It would, in fact, extend the disadvantages of a criminal record and would likely cost taxpayers tens of millions of dollars in the process.

The practical difference between pardons and expungement is minimal. If an individual is pardoned, their record can only be unsealed in exceptional circumstances, such as if a new offence is committed. This has only happened in about 5 per cent of cases since the mid-1970s.

There is a third advantage to pardons versus expungements. For example, if the United States or another country already has a record of an individual’s conviction, likely from previous or attempted travel across the border, border officials would require a waiver before entry into the U.S., regardless of whether the individual has obtained a pardon or expungement in Canada. If the record has been pardoned, the Parole Board will still have documentation associated with the pardon to prove it has been granted.

If the record has been expunged, only the applicant would have proof of that because the Government of Canada destroys all documentation pertaining to expunged records. Accordingly, it would be difficult to prove the offence had been expunged, particularly if the applicant loses or is not carrying the notification of expungement.

In short, colleagues, while pardons under Bill C-93 require more actions on the part of the applicant, it would be accelerated with guidance being provided by the Parole Board. A self-driven process will allow an applicant to access job opportunities, housing and the shedding of social stigma much faster than expungement.

When the new expedited system is up and running, if the bill is approved, as I mentioned earlier, applications will likely be processed in weeks as opposed to months. That’s surely what we would want to see. Subjecting an applicant to additional years of wait times could be considered unfair and indeed contradictory to the policy objectives set out in Bill C-93.

As we would expect, there will be support for those Canadians who are vulnerable and need additional assistance in applying for a records suspension under this legislation.

The Parole Board is currently developing a series of tools, products and services dedicated to assisting those in obtaining pardons under Bill C-93. Some of these services include a dedicated e-mail box, a toll-free number, a social media campaign and a suite of plain-language materials in collaboration with stakeholder groups such as Elizabeth Fry and the John Howard Society. It is obviously very important that the government continue to engage with those who wish to apply and continue to provide assistance, especially with those who are more vulnerable.

In conclusion, honourable senators, I thank you for your consideration of the principles and objectives behind Bill C-93. I think this legislation would help to close the gap on the social injustices incurred because of simple cannabis possession convictions. Those who have possession convictions would have the right to seek an expedited pardon so they can finally have the opportunity to shed the burden of stigma, as well as to eliminate barriers to meaningful employment, education, housing, the ability to volunteer, travel and more.

This was one of the key purposes of legalizing and strictly regulating cannabis in Canada last year.

Honourable senators, the bill before us would operationalize these opportunities and, with those, give life to the important social justice objectives of Bill C-45 — objectives that were widely supported in the Senate, as was the notion of pardons, I’ll remind you.

I also note Bill C-93’s broad support in the House of Commons. It passed on division after a vibrant debate and detailed study.

Having talked a lot about expediting pardons or records suspensions, I encourage to you join me in sending Bill C-93 to committee as expeditiously as possible so that those with simple cannabis possession convictions do not have to wait any longer to participate equally in our society.

Thank you, colleagues.